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Abstract

This dissertation examines homicide in Ottoman-era Islamic jurisprudence. Broadly speaking, it aims to articulate a more comprehensive approach to studying criminal law in Islamic jurisprudence, one that takes into account both theoretical doctrines and practical institutions. This study therefore makes a methodological and a substantive intervention in the study of Islamic law. Methodologically, I argue against the scholarly tendency to evaluate Islamic law within its theological guise. Put differently, Islamic law is rarely seen as law first and Islamic second. Far more common is to view Islamic law as a narrower exercise in scriptural interpretation. Because the Shariʿa was God’s law, it is often held, Muslim jurists historically drew no distinction between law and morality and therefore no distinction between law and politics. For jurists, the Shariʿa was a single, universal system of law, permitting no political division and no legislation from temporal rulers. This standard account, however, overlooks the historically and politically contingent nature of Islamic jurisprudence. This dissertation contends that Islamic law, analogous to Roman law in premodern Europe, was a legal tradition that over time got worked into discrete territorial legal systems. It is with this contention in mind that the subtitle to this study distinguishes between Islamic jurisprudence and Ottoman law. The distinction between tradition and system appears most saliently in the domain of criminal law and is illustrated best through homicide. Modern scholars have generally looked for Islamic criminal law in the traditional books of Islamic legal science (fiqh). Because intentional homicide in Islamic jurisprudence carried the possibility of the death penalty through requital (qiṣāṣ), it usually gets classified as a crime. These texts, however, were mostly concerned with civil matters, addressing the relationships among people rather than the relationship between people and the sovereign. I argue that jurists theorized homicide primarily as the violation of a private right, and considered its remedies, including both compensation and requital, as civil remedies, in that the victim’s heirs held the right to exercise or forgo the option. For the criminal dimension of homicide, we must look to the public jurisdiction of temporal sovereigns. Jurists held, I argue, that the sovereign ruler possessed the competency and discretion to make rules and institutions in furtherance of the common good, such as the punishment of offenders who escaped civil liability. Ottoman legal institutions illustrate well this distinction between the private and public domains of the law. By keeping these two domains distinct, therefore, I propose a more accurate description of the normative and institutional framework of Islamic criminal law.

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